Despite one man’s SCC success little ground gained, says lawyer

Innocent people imprisoned because of the Crown’s failure to disclose exculpatory evidence are likely to be left without state compensation in many cases because the Supreme Court has made it too difficult to obtain Charter damages, a lawyer warns.

On May 1, the top court ruled 6-0 that appellant Ivan Henry can proceed with his suit against the Attorney General of British Columbia for Charter damages for the harm he suffered due to the Crown’s alleged failure to make full disclosure of exculpatory and other relevant evidence. Henry does not have to prove malice on the Crown’s part, only that the evidence was intentionally wrongly withheld, the court held in Henry v. B.C. (Attorney General) [2015] S.C.J. No. 24.

Henry was declared a dangerous offender in 1983 and spent nearly 27 years in a prison for a string of sexual assaults that he did not commit. His convictions were quashed by the British Columbia Court of Appeal in 2010.

The court’s decision will do little to remedy other miscarriages of justice caused by wrongful nondisclosure by Crowns, predicts Sean Dewart of Toronto’s Dewart Gleason.

“It’s obviously good news for Ivan Henry, who is closer to getting the compensation he deserves. But beyond that modest advance for Mr. Henry…this is a profoundly disappointing judgment,” said Dewart, who with co-counsel Tim Gleason represented the intervener Association in Defence of the Wrongly Convicted. “The majority went in somersaults to re-emphasize the existing law that protects Crown prosecutors from any type of accountability.”

The issue before the Supreme Court concerned the level of fault that must be shown to sustain a wrongful nondisclosure claim for damages under s. 24(1) of the Charter, which authorizes courts to award an “appropriate and just” remedy for the infringement of rights — in this case, Henry’s s. 7 right to make full answer and defence.

A motions judge held in 2013 that Henry must demonstrate “gross negligence” on the Crown’s part. But the B.C. Court of Appeal agreed last year with the unanimous submission of B.C. and nine other attorneys general that the highest liability threshold of “malice” should apply, the same standard applicable to the rarely proven tort of malicious prosecution.

In allowing Henry’s appeal, the Supreme Court unanimously held that malice is not required. A majority of four judges ruled that Charter damages lie against the state when a prosecutor’s wrongful nondisclosure is “intentional.”

“A cause of action for Charter damages will lie where the Crown, in breach of its constitutional obligations, causes harm to the accused by intentionally withholding information when it knows, or would reasonably be expected to know, that the information is material to the defence and that the failure to disclose will likely impinge on the accused’s ability to make full answer and defence,” Justice Michael Moldaver wrote for Justices Rosalie Abella, Richard Wagner and Clément Gascon.

In dissent on that issue, Chief Justice Beverley McLachlin and Justice Andromache Karakatsanis argued that imposing a fault requirement on the Crown as a prerequisite to Charter damages is inconsistent with the mission of s. 24(1) to redress Charter breaches, and with the Supreme Court’s principled framework for awarding Charter damages (Vancouver (City) v. Ward [2010] S.C.J. No. 27).

The fault standard adopted by the majority is bad for the administration of justice, Dewart contended.

“Prosecutors make mistakes, and make decisions, and do things that can result in horrible miscarriages of justice,” he said. “Ivan Henry spent 27 years in jail for a crime he didn’t commit. He doesn’t care why they did it. He doesn’t care if they were lazy, or reckless, or cynical, or made an honest mistake. This man has been horribly wronged, and the justice system should do something to fix its mistakes.

“But in all of the cases that were sort of reaffirmed today by the court there’s this extraordinary deference towards, and protection of Crown prosecutors. Effectively they are utterly insulated.”

Dewart described the majority ruling as “the enthusiastic reaffirmation of what I see as two very infantile arguments that the Crown always makes: the first is that there will a flood of cases and Crown attorneys will have to spend too much time in discoveries in civil court and so forth, and also that they’ll become too defensive. They’ll be worried about getting sued and so they won’t make bold decision as prosecutors.”

Similar arguments can be made in professional negligence cases involving doctors, lawyers or other professionals, he said, “and if it wasn’t a Crown attorney you would be laughed out of the room.”

Paul Cavalluzzo, who with Adrienne Telford represented the intervener Canadian Association of Crown Counsel which argued for a malice standard, defended the judgment.

“My view is that the court has come down with a reasonable balancing here,” said Cavalluzzo of Toronto’s Cavalluzzo Shilton. By requiring that wrongful nondisclosure be intentional, the court has created a “significant” threshold that will enable front-line Crowns to do their jobs without being chilled from prosecuting vigorously, and without being diverted from their jobs by fighting unmeritorious wrongful nondisclosure claims in civil court, he said.

He added that the majority did take into account the association’s policy arguments when it rejected the proposed standards of negligence and gross negligence.

In his judgment, Justice Moldaver noted that “all failures to disclose are not made equal. Highly blameworthy conduct, such as the intentional suppression of crucial evidence to obtain a conviction at all costs, sits at one end of the spectrum. At the other, one finds good faith errors in judgment about the relevance of tangential information. Both scenarios constitute a breach of an accused’s Charter rights. Yet, manifestly, these scenarios do not possess the same persuasive force in terms of justifying a Charter damages award under s. 24(1).”

Given the complex nature of many disclosure decisions, “courts should be exceedingly wary of setting a liability threshold that would award Charter damages for even minor non-disclosure,” he said. “Crown counsel will, from time to time, make good faith errors. Exposing prosecutors to potential liability every time such errors are made would, in my view, interfere with the proper execution of prosecutorial functions. Setting the liability threshold too low would also pose a considerable risk that baseless damages claims against the Crown would proliferate.”

In Henry’s case, the relevant evidence not disclosed by the Crown at trial, on appeal, and during his many attempts to get his case reopened included: complainants’ statements revealing inconsistencies that could have been used to attack the already suspect evidence used to identify him; key forensic evidence of sperm recovered from several of the crime scenes that could have been used to include, or exclude, a suspect based on blood type; and the fact that there was another suspect who lived near Henry and who had been arrested twice in the vicinity of the attacks which occurred in the early 1980s. Based on DNA evidence that emerged nearly two decades later, the suspect pleaded guilty in 2005 to three sexual assaults that occurred in the same area, while Henry was in prison. The sexual assaults bore the hallmarks of the crimes for which Henry was convicted, but Henry was not informed of their existence.

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